posted at 1:36 pm on October 23, 2009 by Ed Morrissey

First Patrick Leahy scoffed at questions over whether the federal government has the authority to order Americans to buy a particular product, even though that has never happened in our 233-year history, and now the Speaker of the House claims that the question is “not serious.” CNS News has the audio of Nancy Pelosi providing the Democratic dodge on the constitutionality question:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi avoided answering the question, probably because she doesn’t have an answer. Her spokesman said that it was “not a serious question,” but if so, one would presume that Pelosi or her office could provide an easily-corroborated answer. After all, the Constitution is where Congress derives all of its authority. It’s not exactly a lengthy document. How difficult is it to cite the clause that enables Congress to impose a mandate on its citizens to spend money on anything but a tax?

Well, as it turns out, pretty darned difficult. The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance. The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly. If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well. Good luck getting them to buy into that policy.

Blowback

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You know, the same question could be asked about Obama’s “pay czar” too.

Q: Are the actions of the ‘pay czar’ constitutional?

GIBBS: Say what?

Q: Well, the people affected by the ‘pay czar’ are primarily people with legal and enforceable contracts with their companies. Under what Constitutional authority can the government simply declare those contracts null and void?

GIBBS: Say what?

Q: And isn’t there a case to be made, too, that these actions amount to an unlawful taking?

GIBBS: Say what?

Q: The Constitution forbids it under the Fifth Amendment. You remember, “private property shall not be taken without just compensation.” Where’s the due process here?

“CONSTITUTIONAL! ARE YOU SERIOUS?, let me tell you, you little cretin, the only thing important in that ancient scrap of paper is that it makes ME third in line for President! The fact is that I was elected as Speaker of the House, that means that I and my party can do whatever we want! Constitutional, let me tell you, you little opinion-piece weasel — get your no longer news organization butt out of my face! The last government-limiting remnants of that worthless old Constitution have been swept away in the 2008 election with the ascendancy of the decisive majority of my flying monkeys party to both houses of congress and the White House. …and soon we’ll have the Supreme Court and your little dog Toto too!”

I have no doubt that is why Schumer is REALLY repealing McCarran Ferguson. Once they do the feds WILL have control over health insurance as interstate commerce, and THEN they will use that to assert their Constitutional right to force us into purchasing it…

What makes you think federal oversight will work any better than state and local oversight?

MarkTheGreat on October 23, 2009 at 4:50 PM

Oddly enough, we need look no further than the credit card industry for an answer.

In the case Marquette vs. First Omaha Service Corp., the Supreme Court ruled that a national bank could charge the highest interest rate allowed in their home state to customers living anywhere in the United States.

Some states loosened their laws to attract businesses…all well and good, but as a result the CC companies can behave almost like loan sharks and there’s nothing anyone can do to stop them. I am told that in some cases you literally could get a better interest rate from an actual mob loan shark!

The long and short of it is that usually fair play to move where you want to, but being able to short-circuit one state’s laws while conducting business in another (and after having moved solely for that purpose) is dirty pool.

Now apply this to the food or drug industries…imagine multiple big-name food distributors relocating to states that make their food-safety laws extremely lax for the express purpose of attracting them, and then turn a blind eye to any potential consequences of doing so.

With all due respect to the \”Sea Lawyers\” here who say this might be Constitutional. I say: Go back to Law School!The Govt regulates farming through the USDA, etc…So according to you: -\”All citizens must by groceries from a store,. You may not plant your own garden or raise your own livestock. Not buying from a store causes an undo hardship on the farmer, business, etc.It doesn\’t matter that someones uninsured illness \”might\” cause monetary damage if not paid, it must be proven.This will be struck down.

The whole point of grabbing power is that once you have it you don’t have to rationalize what you are doing with anything like the Constitution. You just do what you want. Nancy already thinks she has grabbed enough power to do what she wants. The question for the rest of us is, are we really willing to do what it takes to strip her and her ilk of the power they have grabbed?

csdeven on October 23, 2009 at 11:59 PM
Absolutely. If health insurance wasn’t tied to one’s employment, it would also be cheaper.

Another point to ponder is that these fascists are not planning for there to be any other than Barak on high. They are trying their damndest (sp) to gin up a national emergency so they can declare martial law. The swine flu was supposed to be just such an event only it didn’t turn out to be the pandemic they hoped for.

And if the government would get out of the way and allow us to shop across state lines, health care insurance costs would drop dramatically. Consequently, we still wouldn’t need them to interfere.

csdeven on October 23, 2009 at 11:59 PM

In theory, yes. In practice..doubtful. Actuary tables are actuary tables. If I’m overweight, have high cholesterol, high blood pressure,etc…the risk to the insurance company is not lessened because I live in different state from where I purchased my health insurance.

There are consequences for being apathetic. Voting for liberals, and in general for most Democrats will destroy our civilization if we don’t stop it now.

scotash on October 24, 2009 at 4:03 AM

While I agree that voting for leftists is insane, also voting for frauds like Romney, McShamnesty, Grahamnesty and the rest of the RINOs is also insane.
Justice Kennedy, appointed by REAGAN cannot be counted on to support and defend the constitution and leftist Justice Stevens was appointed by Ford so don’t think that Republicans will absolutely nominate Conservative Justices.

Force ALL american citizens to buy my bumper stickers or face fines? – to show my support for communism of course.

force all american citizens to buy a rubber duckie (because it is made of recycled condoms) and i need to hide the fact i ordered 100 million dollars worth of rubbers and handed them out to all the democrats at their anual SCREW the US TAXPAYER F*** FEST…?

Sheesh

I remember back in the 90′s when some BRILLIANT
businessmen approached congress with their
BRILLIANT (loosely) plan
to FORCE all americans to buy stuff
UNLESS they called their number and opted out..

Remember that fiasoco?

congress (democrats SCREAMED like stuck pigs)..
but now 8 years later guess what..
Their doing the samed damed thing

Taking away our health coverage
replacing it with obama care
and if you dont like it
pelosi will SICK the IRS on you
put a lean on your house

And throw your sorry asses onto the street

then give you house to an illegal mexican family
wjho acorn just registered as democrats..

and reading something before you sign it isnt important either right? How the hell are these people still working? Maybe put a resignation acceptance letter in fron of them to sign and hope they don’t read that too.

In theory, yes. In practice..doubtful. Actuary tables are actuary tables. If I’m overweight, have high cholesterol, high blood pressure,etc…the risk to the insurance company is not lessened because I live in different state from where I purchased my health insurance.

Fed45 on October 24, 2009 at 2:47 AM

I don’t buy it.
When you have a couple of providers in a state that have a lock on all the business there is little reason to cut premiums.
A smart insurance provider could make out well by offering a higher risk premium for overweight people etc and attract people from all states.
I believe this because I think the overweight=bad health is mostly a bogus correlation, so if the premium cost was higher but the outlay was comparable to outlays for “normal” weight people you come out ahead.
Being overweight doesn’t mean you have higher blood pressure or higher cholesterol than your skinny neighbor.

People who run, bike, rollerblade, skateboard, hike, ski, etc, are probably using more everyday type medical services than the person who putzes around the house.
I know this is true of my friends who almost obsess with exercise and their diet…strained muscles, shin splints, back aches, abrasions, hip problems, hand problems, etc. things that you wouldn’t even notice or even mention….but they’re having “it” checked out.

Family Courts routinely “mandate” (no, the actual word is “order,” but you understand the relevance, I hope) that non-custodial parent to pay for health insurance, and to do so whether the means exist for him (since 85% of payees are male, I use the proper gender) to do so or not under threat of incarceration. I don’t know the case that set up such an act was legal, but the USSC certainly turned around the “innocent until proven guilty” clause to one that sets the burden of inability to pay on the father (again, correct word defendant, but you get the relevance to the slant of this response). So precedent exists, I’m sure as high an appellate court as USSC. When Congress mandates citizens much purchase health insurance it will be a tough battle to deny them that authority, in either a conservative or liberal USSC because both sides have shown a total abandonment of reason when it comes to the constitution and Founders’ intent (clearly displayed on the Left by Roe v Wade and on the right by the case that allows property to be condemned and sold to developers as fair use of imminent domain).

That argument aside, the issue here is “liberty.” The term implies an individual’s right to self-determine certain inalienable choices, not just rights, and the Founders’ certainly discuss that individual freedom – determination – is essential to individual development. The communists (socialists is a just the new cover word for what is now considered, apparently, a politically incorrect term) will argue that when one’s individual actions affect the “well-being” (used by the Founders to imply national well-being, not collectivism), then so does their liberty. And while I disagree, and so many others do as well, with that reasoning, it is the prevailing thought and argument with our leaders.

Oh great, now idiots are trying to inject the “Necessary and Proper Clause” to mean that Congress can legislate anything it damned well wants.
The answer to this is a resounding NO! Congress has the limited, granted powers to enact legislation ONLY on the subjects granted in Article 1, Section 8 or, as with the census, any subject SPECIFICALLY named in the Constitution or its amendments.
Even the “General Welfare Clause” is limited to the subjects in Article 1, Section 8.
Even the SCOTUS MUST go back to its original assignment, to ENFORCE the Constitution, not to “interpret” the Constitution which was interpreted by the men who wrote the Constitution.

I don’t buy it.
When you have a couple of providers in a state that have a lock on all the business there is little reason to cut premiums.
A smart insurance provider could make out well by offering a higher risk premium for overweight people etc and attract people from all states.
I believe this because I think the overweight=bad health is mostly a bogus correlation, so if the premium cost was higher but the outlay was comparable to outlays for “normal” weight people you come out ahead.
Being overweight doesn’t mean you have higher blood pressure or higher cholesterol than your skinny neighbor.

People who run, bike, rollerblade, skateboard, hike, ski, etc, are probably using more everyday type medical services than the person who putzes around the house.
I know this is true of my friends who almost obsess with exercise and their diet…strained muscles, shin splints, back aches, abrasions, hip problems, hand problems, etc. things that you wouldn’t even notice or even mention….but they’re having “it” checked out.

Itchee Dryback on October 24, 2009 at 1:29 PM

You are providing anecdotal evidence. Doesn’t match with the actuarial tables insurance companies use to determine rates/risk. Like it or not, overweight, sedentary smokers are viewed by insurance companies as a higher risk than the “healthy/active” ones they may have aches and pains every day because of their activities.

The perceived risk of an individual who is fifty years old, overweight, and a smoker won’t decrease just because that individual can buy insurance anywhere in the country.

And if an insurance company can offer cheap premiums to entice low-risk people from all over the country, they’re that much less likely to continue offering any type of insurance to higher-risk individuals.

Then there is the volume-based bargaining aspect. Insurance companies keep costs down by making agreements with doctors, hospitals and other healthcare providers to get lower rates than any individual buyer could ever achieve. Insurers operating from one state may have a difficult time, on their own, bargaining in states where they have relatively small market presence. It is unlikely that an insurer could ever get a doctor or hospital in Massachusetts to agree to the same fee schedule that is acceptable in Idaho. Even Medicare, the largest single “player” in the healthcare market, hasn’t figured out a way to pay the same reimbursement rate to all health care providers across the country.

The public option would effectively be just another insurance plan offered on the open market. It would likely be administered by a private insurance provider, charging premiums and copayments like any other policy.

The only real difference is that it would have the deep pockets and stable of lawyers of the federal government at it’s disposal, so it could engage in “dumping” with no fear of economic repercussions.

After all, the Constitution is where Congress derives all of its authority. It’s not exactly a lengthy document.

Yes, and it served us so well for so long, yet our idiots in Congress now write single bills that are a hundred times longer than the entire Constitution so they can tuck all sorts of crap into them (homosexuals added to hate crimes in a defense bill? ARGHH!). There is something so fundamentally wrong with what our government has become. I’m sickened for my children. Just sickened.